To implement an interim regulatory strategy for protecting the public interest against excessive stress on water resources of Central Florida due to the consumptive use of water, providing for allocations of available groundwater and expeditious ...

 

WATER MANAGEMENT DISTRICTS
South Florida Water Management District

RULE NO: RULE TITLE
40E-2.091: Publications Incorporated by Reference
40E-2.301: Conditions for Issuance of Permits
40E-2.321: Duration of Permit
40E-2.331: Modification of Permits
40E-2.381: Limiting Conditions
PURPOSE AND EFFECT: To implement an interim regulatory strategy for protecting the public interest against excessive stress on water resources of Central Florida due to the consumptive use of water, providing for allocations of available groundwater and expeditious development of supplemental water supply projects to avoid the adverse effects of competition as well as harm to the water resources. In addition, the District proposes to update references to the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District.”
SUMMARY: The proposed rules identify an area (the Central Florida Coordination Area, or CFCA) in which stress on the water resources is rapidly increasing because of escalating withdrawals of groundwater for consumptive use. The rules provide an interim regulatory framework for the portion of the CFCA lying within the jurisdictional boundaries of the South Florida Water Management District (SFWMD); other portions of the CFCA lie within the St. Johns River Water Management District and the Southwest Florida Water Management District, which are also proposing to adopt rules similar to this one. The CFCA in the SFWMD includes portions of Orange, Osceola and Polk Counties located in the SFWMD. Under the proposed rules, public supply utilities and similar applicants proposing to withdraw groundwater in the CFCA will generally be restricted to no more than their demonstrated 2013 demands. Such an applicant may be issued a permit with a duration of up to 20 years for its 2013 demand if the applicant develops and uses at least one specific supplemental water supply project (SWS) to meet all the increase in quantity above its demonstrated 2013 demand for the duration of the permit. Alternatively, the applicant may demonstrate that SWS development is infeasible for all the increase above its 2013 demand. In this case, the applicant must maximize use of SWS to meet as much of the increase as is feasible and use SWS for the remainder of the increase when provided by others at an economically feasible cost. Public supply utilities or similar applicants will be restricted to permit durations of no more than December 31, 2013, if such applicants do not develop SWS projects or use SWS to meet as much of their increases above 2013 demands as is feasible. The rules also provide clarifying definitions, a statement of intent, exceptions to the restrictions on groundwater allocations, a map and description of the portion of the CFCA lying within the District, a description of CFCA permit conditions, and a sunset provision.
Additionally, the proposed rules update references to the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District.”
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 373.044, 373.113, 373.118, 373.171 FS.
LAW IMPLEMENTED: 373.023, 373.042, 373.0421, 373.109, 373.185, 373.196, 373.219, 373.223, 373.224, 373.226, 373.229, 272.232, 373.233, 373.236, 373.239, 373.250 FS.
A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: October 11, 2007, beginning 9:00 a.m.
PLACE: South Florida Water Management District, B-1 Auditorium, 3301 Gun Club Road, West Palm Beach, FL 33406
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Clerk of the South Florida Water Management District, [phone], ext. 2087 or [phone]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Keith R. Smith, Deputy Department Director – Water Supply, South Florida Water Management District, P. O. Box 24680, West Palm Beach, FL 33416-4680, [phone], ext. 6620 or [phone], email: [e-mail] or Elizabeth D. Ross, Senior Specialist Attorney, South Florida Water Management District, P. O. Box 24680, West Palm Beach, FL 33416-4680, [phone] ext. 6257 or [phone], email: [e-mail]. For procedural questions, contact Jan Sluth, Senior Paralegal, South Florida Water Management District, P. O. Box 24680, West Palm Beach, FL 33416-4680, [phone], ext. 6299 or [phone], email: [e-mail].

THE FULL TEXT OF THE PROPOSED RULE IS:

40E-2.091 Publications Incorporated by Reference.

The “Basis of Review for Water Use Permit Applications within the South Florida Water Management District – (effective date), April 23, 2007,” is hereby published by reference and incorporated into this chapter. A current version of this document is available upon request.

Specific Authority 373.044, 373.113, 373.118, 373.171 FS. Law Implemented 373.042, 373.0421, 373.109, 373.196, 373.219, 373.223, 373.224, 373.229, 373.232, 373.233, 373.236, 373.239, 373.250 FS. History–New 9-3-81, Formerly 16K-2.035(1), Amended 2-24-85, 11-21-89, 1-4-93, 4-20-94, 11-26-95, 7-11-96, 4-9-97, 12-10-97, 9-10-01, 12-19-01, 8-1-02, 6-9-03, 8-31-03, 4-23-07, ________.

 

(The following represents proposed changes to the “Basis of Review for Water Use Permit Applications Within the South Florida Water Management District, April 23, 2007”)

1.3.2.1Competition within the Central Florida Coordination Area

In adopting the interim CFCA rules, the District acknowledges the increasing stress on the water resources in the CFCA and the mandate of the Legislature to foster the development of additional water supplies and avoid the adverse effects of competition. However, the interim CFCA rules do not abrogate the rights of the Governing Board or of any other person under Section 373.233, F.S. The CFCA regulatory framework provides a comprehensive strategy for interim allocations of available groundwater and expeditious development of supplemental water supply projects to minimize competition and thereby provide greater certainty of outcome than competition.

1.7.2.2Special Duration Factors

A.No change.

B.Sources of Limited Availability. For purposes of the Section, the following are Sources of Limited Availability:

1. through 3. No change.

4.Kissimmee Regional Water Supply Planning Area within the Central Florida Coordination Area: Groundwater.

C.The following uses shall receive a 20 year permit, if:

1.For uses from sources other than those listed in subparagraphs B. 1. through 4., above, the allocation necessary to meet the 20 year demands is consistent with Chapters 40E-2 and 40E-20, F.A.C., as applicable, provided that the demands are realized according to the schedule set forth in the permit, for the duration of the permit; or

2. through 3. No change.

4.The applicant proposes groundwater withdrawals within the Central Florida Coordination Area to satisfy demands from that source up to its demonstrated 2013 demand and proposes to develop at least one specific supplemental water supply project to meet demands greater than the 2013 demand as set forth in subsection 3.2.1.F.3, or otherwise complies with subsection 3.2.1.F.3, and otherwise satisfies the requirements of Chapter 40E-2 or 40E-20, F.A.C., as applicable, for the duration of the permit.

D.Requests for Allocations in Excess of Subsection 1.7.2.2.C.3., Permit Modifications, or Initial Permits, from Sources of Limited Availability other than applicants governed by subsection 1.7.2.2.C.4.:

The baseline duration under this Section shall be five years or as otherwise provided below. The following factors shall be considered and balanced in determining the duration of a permit:

1. through 3. No change.

4.Whether the requested allocation is supplied by a brackish water source, consistent with the use of saline water in Section 3.4; or

5.Whether the modification of the permit results in no more than a de minimis increase in impact to water resources and existing legal uses, as compared to the existing permit. Consideration of this factor will lead to a duration consistent with the permit being modified; or

6.A public supply utility applicant or similar applicant proposing groundwater withdrawals within the Central Florida Coordination Area and does not propose to satisfy demands greater than demonstrated 2013 demands with at least one specific supplemental water supply project as set forth in subsection 3.2.1.F.3, or does not otherwise comply with subsection 3.2.1.F.3. Consideration of this factor will lead to a maximum permit duration of up to 2013.

E. No change.

1.8 Definitions

Allocation Coefficient through Area of Influence – No change.

Brackish Groundwater – For purposes of the additional permitting requirements within the Central Florida Coordination Area (CFCA), brackish groundwater means groundwater in or below the Lower Floridan Aquifer that: has chloride concentrations at or above 1000 milligrams per liter (mg/L); has total dissolved solids concentrations at or above 1500 mg/L; or is located east of the C-35, C-36, and C-37 canals; south of latitude 28 degrees 7 minutes north; north of latitude 27 degrees, 54 minutes north and west of the District’s boundary lying between these two latitude lines as described in section 373.069(2)(e), F.S., delineated on Figure 3-3.

Cone of Depression through Drawdown – No change.

Demonstrated 2013 Demand – For purposes of the additional permitting requirements within the Central Florida Coordination Area demonstrated 2013 demand means the quantity of water that an applicant establishes it will need to meet demands in 2013.

Due Diligence – Taking all actions that a reasonably prudent person would take to meet the schedule requirements in the permit for developing and using all required supplemental water supplies. Particular circumstances beyond the permittee's control will be considered in determining whether due diligence has been exercised.

Effluent through Potentiometric Surface – No change.

Public Supply Utility – Any municipality, county, regional water supply authority, special district, public or privately owned water utility, or multi-jurisdictional water supply authority, that provides water for use by the general public.

Public Water Supply through Seasonal High Water Level – No change.

Seawater or Saltwater – Groundwater or surface water with a chloride concentration at or above 19,000 mg/L.

See page Irrigation System through Service Area – No change.

Similar Applicant – For purposes of the additional permitting requirements within the Central Florida Coordination Area (CFCA), a similar applicant means an applicant, other than a public supply utility, whose projected water demand after 2013 will exceed its demonstrated 2013 demand.

Staff report through Supplemental Irrigation Requirement – No change.

Supplemental Water Supply – For purposes of the additional permitting requirements applicable within the Central Florida Coordination Area (CFCA), supplemental water supply means surface water, stormwater, water that is reused after one or more public supply, municipal, industrial commercial or agricultural uses, and saltwater. Brackish groundwater may be considered a supplemental water supply if it can be developed in a manner that will not cause or contribute to harmful impacts from cumulative groundwater withdrawals in the CFCA. This definition shall not govern the District’s funding decisions made pursuant to Section 373.1961(3), F.S.

Traveling Guns through Xeriscape – No change.

3.0 WATER RESOURCE EVALUATIONS

3.2.1Restricted Allocation Areas

Due to concerns regarding water availability, the following geographic areas are restricted with regard to the utilization of specific water supply sources. These areas and sources include the following:

A. through E. No change.

F.Groundwater Allocation in the Central Florida Coordination Area (CFCA) –

1.Overall Intent:

The Central Florida Coordination Area (“CFCA”) is located within portions of three water management districts and includes Polk, Orange, Osceola and Seminole Counties, and southern Lake County. Within the South Florida Water Management District, the CFCA is the area delineated in Figure 3-4. As shown in Figure 3-4, the boundary for the portion of the CFCA located within this District is that portion of the south line of Polk County and the South line of Osceola County as said county boundaries are described in Sections 7.53 and 7.49, F.S., respectively, lying within the boundaries of the South Florida Water Management District as described in subsection 373.069(2)(e), F.S. In this area, stress on the water resources is escalating because of rapidly increasing withdrawals of groundwater. The public interest requires protection of the water resources from harm. The CFCA rules address the public interest by providing an interim regulatory framework to allow for the allocation of available groundwater in the area, subject to avoidance and mitigation measures to prevent harm, and by requiring the expeditious implementation of supplemental water supply projects (as defined in Section 1.8). This interim regulatory framework is one component of a comprehensive, joint water management district strategy for regional water resource management that also includes regional water supply planning, alternative water supply project funding, and water resource investigations and analysis that will result in a long-term approach for water supply within the CFCA. The interim CFCA rules (as listed in section 3.2.1 (F) 1. (a) below) shall remain in effect only through December 31, 2012, except that if the District initiates rulemaking to provide a long-term regulatory framework to replace the interim rules and a petition challenging all or part of the proposed rules is filed under Section 120.56 of the Florida Statutes before that date, the interim rules shall remain effective until 100 days after a final determination of the validity or invalidity of the proposed rules.

(a)Special additional rules apply to public supply utility applicants and similar applicants (see definitions in section 1.8) proposing to withdraw groundwater in the CFCA. These rules are found in section 1.3.2.1, subsections 1.7.2.2 B.4., 1.7.2.2 C.4., 1.7.2.2 D.6., section 1.8 , the Definitions for Brackish Groundwater, Demonstrated 2013 Demand, Due Diligence, Public Supply Utility, Saltwater, Similar Applicant and Supplemental Water Supply, subsection 3.2.1 F, and subsection 5.3 F.

2.Maximum Allocation:

Public supply utility applicants and similar applicants proposing to withdraw groundwater in the CFCA, are restricted to a maximum allocation of groundwater in an amount no greater than its demonstrated 2013 demand, however, an applicant may seek a duration that extends beyond 2013 for that level of allocation. This restriction shall not limit permitted groundwater withdrawals from:

a. Aquifer storage and recovery wells that receive only surface water, stormwater, or reclaimed water, when the volume of water withdrawn does not exceed the volume of water injected; or

b. The surficial aquifer immediately below or adjacent to a stormwater management system or surface water reservoir where any drawdown in the surficial aquifer will be offset by recharge from the system or reservoir; or

c. An injection/recovery wellfield that injects surface water, stormwater, or reclaimed water that is not provided to users in accordance with District rules, through one or more wells for storage within an aquifer zone and subsequently recovers it through wells from the same aquifer zone and in the same wellfield, when the volume of water withdrawn does not exceed the volume of water injected; or

d. A recharge/recovery project that receives only surface water, stormwater, or reclaimed water that is not provided to users in accordance with District rules, when the volume of water recovered does not exceed the volume of water recharged, and the drawdown due to recovery of water from the Floridan aquifer will be offset in the:

i. surficial aquifer by recharge from the project, and

ii. Floridan aquifer by recharge from the project, except immediately adjacent to the recovery well(s).

3.Water Supply Project Development:

Any applicant seeking a permit duration extending beyond 2013 whose projected water demand after 2013 will exceed its demonstrated 2013 demand must:

a.Identify at least one specific supplemental water supply project that the applicant will develop (either singly or in concert with others) and use to meet all the increase in quantity above its demonstrated 2013 demand, for the duration of the permit; and provide for each identified project, a project development schedule with milestones that when followed will result in the applicant's using supplemental water supply by the end of 2013; or

b.Demonstrate that the development (either singly or in concert with others) of a sufficient supplemental water supply to meet all the increase in quantity above its demonstrated 2013 demand is not economically, environmentally, or technologically feasible; and establish that it will maximize the use of supplemental water supply to meet as much of the increase as is economically, environmentally, or technologically feasible and will obtain any remaining portion of the increase by using water from one or more supplemental water supply projects when provided by others at a cost that is economically feasible. The affordability of an increase in water rates for a public supply utility's customers is a consideration in evaluating economic feasibility; however, an increase in water rates shall not, by itself, constitute economic infeasibility.

c.In determining the amount of supplemental water that must be used as set forth in subsection 3.2.1.F.3, the applicant may subtract the portion of its demand that the applicant demonstrates will be satisfied by water conservation under subsection 2.6.1 and the sources identified in subsections 3.2.1.F.2.a., b., c., and d., in effect after 2013.

4.Due Diligence:

A permittee that will lack sufficient supplemental water supplies after 2013 from which to obtain the increase in quantity above its demonstrated 2013 demand can be allocated a temporary amount of groundwater to meet that increase only if it has exercised due diligence to meet all schedule requirements in the permit for developing and using supplemental water supply and providing that other conditions for issuance in Rule 40E-2.301, F.A.C., and this Basis of Review are met. Any such temporary allocation shall cease when water from the supplemental water supply project becomes available.

 

5.0 PERMIT CONDITIONS

5.3 Specific Region Special Conditions

A. through E. – No change.

F.In addition to the general and other special conditions described in this part, permits for public supply utility applicants and similar applicants withdrawing groundwater in the CFCA shall include special conditions that address the following:

a.Implementation of a District-approved plan to monitor hydrology, ecology, and water quality in areas subject to impacts from the permitted withdrawal, with at least annual data reporting and analysis.

b.Implementation of specific District-approved measures to mitigate or avoid harm that would otherwise occur as a result of the permitted allocation.

c.Implementation of District-approved mitigation or avoidance actions to address any unanticipated harm, if the District finds  that harm will occur or has occurred as a result of the permit allocation.

d.Expeditious development and use of supplemental water supply to meet water demands.

e.Submittal of five-year compliance reports for 20 year duration permits as described in subsection 373.236(4), F.S.

f.The reduction in allocation or other modification to the permit, after review of each five-year compliance report or at any other time during the term of the permit, if needed to abate observed or projected harmful impacts as a result of the permitted use, unless the harmful impacts can be mitigated by the permittee. The permittee shall be provided with notice and an opportunity for a hearing under Chapter 120, F.S., if the District makes such a reduction or other modification.

 

40E-2.301 Conditions for Issuance of Permits.

(1) (a) through (g) No change.

(h) Makes use of a reclaimed water source in accordance with the criteria contained in the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District – April 23, 2007-”, incorporated by reference in Rule 40E-2.091, F.A.C.

(1)(i) through (j) No change.

(2) In order to satisfy the conditions for permit issuance in subsection (1), the permit applicant must provide reasonable assurances that the criteria in the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District April 23, 2007”, incorporated by reference in Rule 40E-2.091, F.A.C., are met.

Specific Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.023, 373.042, 373.0421, 373.185, 373.196, 373.219, 373.223, 373.224, 373.226, 373.236, 373.250 FS. History–New 9-3-81, Formerly 16K-2.035(2), Amended 2-24-85, 1-4-93, 4-20-94, 7-11-96, 4-9-97, 12-10-97, 9-10-01, 8-1-02, 8-31-03, 4-23-07,________.

 

40E-2.321 Duration of Permit.

General Duration Provision. When requested by an applicant, a consumptive use permit shall have a duration of 20 years provided the applicant provides sufficient data to demonstrate reasonable assurance that the proposed use meets the conditions for issuance for the requested 20 year permit duration; or otherwise, permits may be issued for a shorter duration that reflects the period for which such reasonable assurances can be provided. This determination will be made pursuant to requirements in Rule 40E-2.301, F.A.C., and the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District”, incorporated by reference in Rule 40E-2.091, F.A.C.

Specific Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.236 FS. History–New 9-3-81, Amended 2-24-85, 4-20-94, 7-11-96, 8-31-03, 4-23-07,________.

 

40E-2.331 Modification of Permits.

(1) through (3) No change.

(4)(a) through (4)(a)2. No change.

3. Does not potentially interfere with any presently existing legal use of water, cause environmental harm, saltwater intrusion, pollution of the water resources, harm to offsite land uses, or does not otherwise raise issues requiring a Staff determination of whether such impacts would occur pursuant to the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District – April 23, 2007”, incorporated by reference in Rule 40E-2.091, F.A.C.; and

4. through 5. No change.

(b) No change.

Specific Authority 373.044, 373.113 FS. Law Implemented 373.223, 373.229, 373.239 FS. History–New 9-3-81, Formerly 16K-2.09(1), Amended 4-20-94, 7-11-96, 4-9-97, 12-10-97, 8-1-02, 4-23-07, ________.

 

40E-2.381 Limiting Conditions.

The Board shall impose on any permit granted under this chapter such reasonable standard and special permit conditions as are necessary to assure that the permitted use or withdrawal will be consistent with the overall objectives of the District, will not be harmful to the water resources of the District, is reasonable-beneficial, will not interfere with any presently existing legal uses, and is consistent with the public interest. Standard permit conditions in Section 5.1 of the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District April 23, 2007”, incorporated by reference in Rule 40E-2.091, F.A.C., shall be set forth in the permit.  Special permit conditions, including those specified in Section 5.2 of the “Basis of Review for Water Use Permit Applications within the South Florida Water Management District April 23, 2007”, incorporated by reference in Rule 40E-2.091, F.A.C., shall be set forth in the permit.

Specific Authority 373.044, 373.113, 373.171 FS. Law Implemented 373.042, 373.0421, 373.219(1) FS. History–New 9-3-81, Amended 2-24-85, 7-26-87, 4-20-94, 7-11-96, 4-9-97, 12-10-97, 9-10-01, 8-1-02, 4-23-07,_________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Keith R. Smith, Deputy Department Director – Water Supply

NAME OF SUPERVISOR OR PERSON WHO APPROVED THE PROPOSED RULE: South Florida Water Management District Governing Board

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: August 9, 2007

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW:  April 20, 2007